David A. Plymyer: Political, Social & Random Commentary

That was the question asked this month by Baltimore City Council Vice President Edward Reisinger after learning that Mayor Stephanie Rawlings-Blake wanted $2 million to pay Washington, D.C. law firm WilmerHale to represent the city during the Department of Justice investigation into the Baltimore Police Department (BPD). City Solicitor George Nilson explained that he has assigned about 10 city lawyers to work with the DOJ during the investigation but that more lawyers were needed “to assemble and review the documents and to accompany employees during interviews.”

In a letter to The Sun retired attorney Jay Schwartz wondered if this type of “note-taking and handholding” could be done more economically by local law firms or additional city lawyers. The answer to Councilman Reisinger is that the city does not need to hire outside attorneys to answer questions, and the answer to Mr. Schwartz is that the attorneys are not being retained to take notes or hold hands. The purpose of hiring a well-connected law firm like WilmerHale at this stage of the DOJ investigation is to try to influence the outcome so that it places the BPD in the best possible light.

The purpose of a “pattern or practice” investigation by the DOJ is to determine if a police department is regularly engaging in conduct that violates people’s civil rights and, if so, what corrective measures need to be implemented. The DOJ interviews numerous police officers as part of the investigation. How freely would you speak about your actions and your employer if your boss’ lawyer was sitting at the table? The focus of the lawyers from WilmerHale will not be on facilitating the investigation; it will be on controlling the flow of information to the DOJ as much as possible.

Some city officials may be having second thoughts about the DOJ investigation even though it was requested by Mayor Rawlings-Blake and embraced by Police Commissioner Kevin Davis. Mr. Davis described the investigation as an opportunity to improve the BPD based on his experience in the Prince George’s County Department, which entered into a consent decree in 2004 after a DOJ investigation. Melvin High, a former chief of that department, described the DOJ investigation into his department as “a turning point in the culture of the Police Department in Prince George’s County” and “one of the best things to happen in the history” of the department. Mr. Davis informed The Sun that he did not fear the DOJ investigation into the BPD and indeed welcomes it. If so, a team of lawyers from WilmerHale is a curious welcoming committee.

If the investigation results in a finding by the DOJ that there is a pattern or practice of civil rights violations then it is prudent for a local government to retain the services of a lawyer or other expert with experience in negotiating consent decrees with the DOJ. The actions demanded by the DOJ to correct violations can be burdensome and very expensive, and expertise in negotiating the terms and conditions of consent decrees with the DOJ is useful in making sure that they are no more burdensome and expensive than necessary. It is incongruous, however, for the city to hire outside counsel to defend its interests during an investigation that the city requested.

Mayor Rawlings-Blake recognized that the problems with the BPD cannot be solved without help from the DOJ. Philadelphia Police Commissioner Charles Ramsey, who requested a DOJ investigation of his department’s use of deadly force when he was the commissioner of the Washington, D.C. police department, has noted that a consent decree can overcome resistance to reforms from labor unions and from politicians otherwise reluctant to fund the reforms. As Commissioner Davis pointed out, “it’s hard to say no to a federal judge.”

The City Council needs to base its decision on funding the contract with WilmerHale on what is best for the city and its citizens over the long term. The best outcome of the investigation will be the one that is least impeded by legal maneuvering and results in the most accurate and complete assessment of the BPD.

[Published as an op-ed by The Baltimore Sun on December 21, 2015. I did not post the piece until June 1, 2016; the date of posting listed above was altered to place the piece in chronological order.]